A Fight to the Death

Frank Rodriguez was sentenced to die twelve years ago. Are we there yet?

Frank's cool reaction to the death verdict stood in stark contrast to that of his trial attorneys, David Eisner and Robin Desmond. "Robin and I were so emotionally wrecked that it's hard to say what his reaction was," says Eisner, who now heads up the public defender's office in Grand Junction.

"It was very overwhelming," Eisner adds. "It was a long trial, and it was physically and emotionally draining." But the verdict itself came as no surprise, he says. "The atmosphere of hate" exhibited in Denver District Judge Connie Peterson's courtroom, he claims, suggested that the death penalty was a foregone conclusion. "The entire environment was pretty ugly," says Eisner. "We felt there was a lot of injustice in the way the trial was conducted."

Eisner says it took him months to recover from the ordeal. He quit his job with the public defender's office a short time after the trial ended--not because he'd lost, he says, but because he wanted to spend more time with his family. (He rejoined the public defender's office in July 1993.)

Eisner's role in the case was mostly over when the jury came back. "Once Frank got the death penalty," says public defender and appellate attorney Mike Heher, "it was pretty much my case."

And in many ways, the Rodriguez case was just beginning. The average length of time condemned prisoners spend on death row in this country is ten years. Eisner says he figured Rodriguez's appeals would last at least that long. He was right.

Death-penalty cases are automatically sent to the Colorado Supreme Court for review, but it took more than three years for the high court to rule on Rodriguez's conviction. In a blistering editorial written in 1994, former governor Richard Lamm blamed the delay on the defense's stalling tactics and on the "inexcusable actions" (in allowing the delays) by the court, whose judges were "deeply divided" over the death penalty. Finally, in 1990, the court voted 4-3 to uphold Rodriguez's sentence.

But that automatic review was just one of many avenues of appeal available to the defense, and Heher made use of all of them. After Heher failed to convince the state Supreme Court to overturn Rodriguez's death sentence, he appealed to the U.S. Supreme Court, which declined to take the case. Heher then asked the Denver trial court for post-conviction relief, a request that resulted in the dismissal of three of the eight charges but did nothing to deter his client's date with death.

From there, Rodriguez's case bounced back and forth from the district court to the state Supreme Court several times. It was assigned to and then lobbed back from judge after judge as Heher raised issues relating to jury instructions and voir dire and pushed for the case to be transferred to a different judicial district.

In 1994 Heher asked for a new trial for his client based on the discovery of "new evidence": Chris Rodriguez, after exhausting all of his own appeals, came forward to claim that he and David Martinez, not Frank, had murdered Martelli. Chris had little to lose from the confession: He'd already been convicted of first-degree murder, and double jeopardy prevented him from facing execution. But he proved to have a highly selective memory about the murder and came into a hearing on the issue saddled with a reputation as a notorious and unreliable prison snitch. Heher lost his bid for a new trial.

The fight to save Frank Rodriguez had always been marked by tension between the defense attorneys and the other players in the drama. It got downright personal when Heher began attacking the character and credibility of the prosecutors, Judge Peterson, the court clerks and the court reporter.

Over the years, Heher has charged that Peterson and her staff have destroyed documents that would have been helpful to his client. "The transcripts and the pleadings are a disaster and have been from the beginning," he says today. "Peterson disposed of 200 to 300 jury questionnaires. Exhibits, affidavits and the jury instructions are missing." Heher claims that "months and months" were wasted because the court clerk's office couldn't find mountains of documents related to the case. He says he's the one who ultimately found them--on a table in the clerk's office, where they'd been sitting the whole time.

"How does a district court lose boxes and boxes of material in a death-penalty case?" asks Heher, still irritated ten years later. "Judge Peterson's staff refused even to talk with us about it." Peterson's staff may have had their reasons for keeping their distance: Almost from the beginning of the appeals process, Heher has accused Peterson of unethical behavior.

One of the most bitter battles of the Rodriguez case has revolved around a defense claim that Judge Peterson lashed out at David Eisner during a critical moment in the trial. Heher, Eisner and several others who were in the courtroom during Silverman's closing arguments in the penalty phase say that Peterson became so impatient with Eisner's near-constant objections that she told him to "shut up and sit down." Making such a statement in front of a jury is deadly to an attorney, Heher says, and he complained about the judge's alleged comment in one of his motions.

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